May 26, 2012

"A Lockean Argument Against the Death Penalty"

The title of this post is the title of this short piece with deep thoughts authored by Vernon Thomas Sarver Jr. and available via SSRN. Here is the abstract:

Initially, I provide a formal characterization of Locke's argument for the death penalty, observing that the language of his Second Treatise on Civil Government subtly allows for restraint in the use of capital punishment. This observation is then augmented by attention to specific themes in his treatise, which collectively weigh against his affirmative conclusion. After this, I introduce an argument against the death penalty, one drawn entirely from Lockean assumptions and new to the literature on capital punishment and social contract theory. This argument, I urge, better reflects the prevailing tenor of his treatise and appears to be on more secure footing within the general framework of his theory of the social contract. Finally, I follow my analyses with a discussion of the relevance this negative argument may have for two public policy issues that have garnered attention recently in the American debate over capital punishment. In a concluding note, I suggest this argument may have merit as a basis for a new strategy by appellants and supporting amici in capital cases on appeal to the United States Supreme Court.

Comments

A few, like Benjamin Rush, thought the death penalty was against a republican form of government. I recall a movie in which a character considered it against the principles of fascist Italy. Very flexible. Works the other way too.

Volokh Conspiracy, btw, flagged a suit against the FDA involving a lethal cocktail.

|| Initially, I provide a formal characterization of Locke's argument for the death penalty….After this, I introduce an argument against the death penalty, one drawn entirely from Lockean assumptions…This argument, I urge, better reflects the prevailing tenor of his treatise…||

(1) Correct me if I am wrong, but all that has utility which has been heretofore gleaned from John Locke, was consistent not only with his "tenor", but also with his conclusions, such as the Social Contract.

(2) Call me a concrete thinker, but gleanings from the conservative, Evangelical, (and therefore homophobic, misogynistic, right-wing, ultra-conservative) Locke formed 1/3 of the philosophers of government who most clearly influenced the pro-death penalty founding fathers.

[--1. Research found that after the Bible, the most cited sources of the founders were Blackstone, Locke, and Montesquieu.
--2. But one of 56 signers of the Declaration of Independence is known to have not favoured the penalty (B. Rush)].
~~Pbs.org, Gwu.org, Procon.org, http://plato.stanford.edu/

....----...."[T]he Law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions must . . . be conformable to the Law of Nature, i.e., to the will of God…....----....

…....----...."[L]aws [human] must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made."
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Locke, Two Treatises on Government, Bk II.

Posted by: Adamakis | May 30, 2012 10:51:41 AM

Yes, I'm sure this will be incredibly helpful in real litigation. I can't tell you how many cases I've won by citing Locke.

Posted by: Anon | May 30, 2012 12:31:23 PM

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